Rev. Kevin Kisler prays prior to the start of a Greece, N.Y., Town Board meeting in 2008. Photo: Rochester Democrat and Chronicle

“Town officials said that members of all faiths, and atheists, were welcome to give the opening prayer. In practice, the federal appeals court in New York said, almost all of the chaplains were Christian. […] Two town residents sued, saying the prayers ran afoul of the First Amendment’s prohibition of the government establishment of religion. The appeals court agreed. “The town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint,” Judge Calabresi wrote.”

“If a public body implements a legitimately neutral policy and procedure to invite local clergy from established congregations in its community to offer an opening invocation, that public body is not required to extend any extraordinary efforts to include particular minority faiths. In other words, no apology is necessary for the demographics of the community that the public body serves.”

In short, opening invocations can overwhelmingly reference Jesus Christ, and they can send invitations only to “established congregations” (ie brick-and-mortar churches) so long as they include a religious minority who inquires/complains. Something I’ve dubbed the “include a Wiccan gambit,” which is exactly what Greece, New York did.

“In just a few seconds’ time during the April Town Board meeting, Jennifer Zarpentine made Greece history. Zarpentine, a Wiccan, delivered the first-ever pagan prayer to open a meeting of the Greece Town Board. Her hands raised to the sky, she called upon Greek deities Athena and Apollo to ‘help the board make the right informed decisions for the benefit and greater good of the community.’ A small cadre of her friends and coven members in the audience chimed in ‘so mote it be.’”

“We conclude, on the record before us, that the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint. This conclusion is supported by several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials. We emphasize that, in reaching this conclusion, we do not rely on any single aspect of the town’s prayer practice, but rather on the totality of the circumstances present in this case.

The town’s process for selecting prayer-givers virtually ensured a Christian viewpoint. Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice, and nearly all of the prayers thereafter. In the town’s view, the preponderance of Christian clergy was the result of a random selection process. The randomness of the process, however, was limited by the town’s practice of inviting clergy almost exclusively from places of worship located within the town’s borders. The town fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town. Such residents may be members of congregations in nearby towns or, indeed, may not be affiliated with any congregation. The town is not a community of religious institutions, but of individual residents, and, at the least, it must serve those residents without favor or disfavor to any creed or belief.”

Cynthia Simpson and Darla Wynne

These cases, and the “model invocation policy” itself, are haunted by the involvement and activism of modern Pagans. It isn’t just that Greece included a Wiccan sectarian prayer among thousands of Christian prayers. The ADF’s policy blueprint was partially constructed around two 4th Circuit cases involving public prayers and modern Pagans: Simpson v. Chesterfield County, the case that helped create the so-called “Wiccan-proof” invocation policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. These two cases helped set the precedents that advocates of sectarian prayer have been navigating through, and their efforts at mob-rule prayer sectarianism will finally be tested by America’s highest court.

How will the court decide? It’s hard to say. SCOTUS took a pass on considering the similar 4th Circuit decision, letting their decision stand, but they may have simply been waiting for a case that would suit the Court’s needs better. For the most part, the modern Supreme Court doesn’t like to corner itself into making sweeping decisions, and it could be that the justices see a needle-threading solution to the issue at hand. Then again, we could be in for another “ministerial exception” moment where broad new freedoms are outlined and defined. At this point it’s anyone’s guess, but I’m sure advocates on both sides of this issue are readying themselves for a fight that could shape invocation policy for a generation.

In the long-simmering battle over the inclusion of (largely Christian) prayers at the beginning of government meetings, an assumption held sway that a written policy of pluralistic inclusion would provide a fig-leaf of legal protection against lawsuits from organizations like Americans United or the ACLU. At least that was the assertion of the conservative Christian advocacy organization Alliance Defense Fund (ADF). In their “model public invocations policy,” the ADF noted how important it was to have an inclusive “neutral” policy on paper, if not in actual practice.

“The bottom line is that any policy adopted and implemented […] must ensure that the invocation opportunity is not exploited to proselytize any particular faith or disparage any others, or show any preference of the Council for a specific faith or religious denomination. It is our belief that the Policy we have carefully drafted meets these criteria and would pass court muster if challenged. […] No invocations policy has a chance to be upheld by a reviewing court today unless it offers equal opportunity to at least the broad array of monotheistic faiths and denominations with a presence in that particular geographic area. One conclusion from the case law is clear: if a public body allows any prayers, it is required to allow for most all prayers, without unlawful discrimination against any.”

The document goes on to assert that no “extraordinary efforts to include particular minority faiths” were necessary, and “no apology is necessary for the demographics of the community that the public body serves.” In other words, in their opinion, a predominately Christian town doesn’t have go out of its way to include Wiccans, Hindus, or Buddhists. This policy blueprint was partially constructed around two 4th Circuit cases involving public prayers and modern Pagans: Simpson v. Chesterfield County, the case that helped create the so-called “Wiccan-proof” invocation policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. The idea was that if local governments threaded the needle of this issue carefully, they could have their cake (opening prayers), and eat it too (mainly Christian-only prayer).

The 4th U.S. Circuit Court of Appeals today ruled 2-1 that the Forsyth County Board of Commissioners’ preference for Christian prayers violates the constitutional separation of church and state. […] The record in the case indicates that 26 of the 33 invocations given from May 29, 2007, until Dec. 15, 2008, contained at least one reference to Jesus, Jesus Christ, Christ, Savior or the Trinity. The appellate court majority said government favoritism in religion is wrong. “Faith is as deeply important as it is deeply personal,” wrote Judge J. Harvey Wilkinson, “and the government should not appear to suggest that some faiths have it wrong and others got it right.”

“…the U.S. Court of Appeals for the Second Circuit ruled the town of Greece, a suburb of Rochester, should have made a greater effort to invite people from other faiths to open monthly meetings. […] The court found that religious institutions in the town of just under 100,000 people are primarily Christian, and even Galloway and Stephens testified they knew of no non-Christian places of worship there. […] “The town’s process for selecting prayer-givers virtually ensured a Christian viewpoint,” it ruled.” The court acknowledges there was no formal policy on who should be invited to deliver invocations, and that the town was open to people of all faiths speaking at meetings. But it also noted the town board didn’t publicize the idea that anybody could volunteer to deliver prayers…”

The decision went on to note that a town’s religious community cannot be defined by a list of churches or religious organizations, since a town is a community of “individual residents” who each have may have unique beliefs and philosophies.

“The town fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town. Such residents may be members of congregations in nearby towns or, indeed, may not be affiliated with any congregation. The town is not a community of religious institutions, but of individual residents, and, at the least, it must serve those residents without favor or disfavor to any creed or belief.”

The ADF, who were defending the town of Greece, has already vowed to appeal this ruling, saying that towns will have to “complete an obstacle course” in order to have opening prayers at government meeting. If this decision holds, as the 4th Circuit’s did, it could help establish a new standard for government prayer, one that demands strong pluralism if a body is going to allow sectarian invocations. It remains to be seen how long the Supreme Court will punt on this issue by denying judicial review. Eventually, they will have to make a stand on these policies, just as it recently took a stand on the question of “ministerial exception.” However, for now, Pagans and other members of minority religions have a new precedent to use in demanding equal treatment in regards to public prayer. No doubt several towns and cities who fall under the jurisdiction of the 2nd and 4th Circuit Courts are currently talking with their lawyers over their prayer policies, and whether they need to include far more Wiccans (and Buddhists, Hindus, Musilms, Jews, etc) than previously imagined.

There are lots of articles and essays of interest to modern Pagans out there, sometimes more than I can write about in-depth in any given week. So The Wild Hunt must unleash the hounds in order to round them all up.

On Joyner and Blackmon’s account, the overall atmosphere made them feel distinctly unwelcome and “coerced by [their] government into endorsing a Christian prayer.” Blackmon claimed that she felt compelled to stand and bow her head because of the Chair’s instruction to stand and because of the audience’s response. Joyner offered a similar account, believing that if she had failed to comply, it would have “negatively prejudice[d] consideration of [her] intended petition as a citizen appearing for public comment.” Both characterized the prayer as sectarian, with Blackmon referring to it as including a “one-minute sermon.”

The Lewis F. Powell, Jr., U.S. Courthouse, home of the Fourth Circuit Court of Appeals.

“…legislative prayer must strive to be nondenominational so long as that is reasonably possible — itshould send a signal of welcome rather than exclusion. Itshould not reject the tenets of other faiths in favor of just one.Infrequent references to specific deities, standing alone, donot suffice to make out a constitutional case. But legislativeprayers that go further — prayers in a particular venue that repeatedly suggest the government has put its weight behinda particular faith — transgress the boundaries of the Establishment Clause. Faith is as deeply important as it is deeply personal, and the government should not appear to suggestthat some faiths have it wrong and others got it right.”

“No federal court has ruled that prayers cannot be offered before public meetings. The Supreme Court has simply missed an opportunity to clear up the differing opinions among the various circuits about the content of the prayers. This means that, for the time being, the standard for prayer policies in the 4th Circuit will be different from the standard held by the rest of the country. ADF will continue to litigate in favor of the historical standard until the Supreme Court eventually hears a case that will clear up the confusion.”

Eventually, SCOTUS will have to make a stand on these sectarian prayer policies, just as it recently took a stand on the question of “ministerial exception.” A concept that had been invoked several times in the lower courts, but never in our nation’s highest court. When it does, cases that involve Wiccans and other minority faiths will have a major influence on how that decision is made. In the meantime, Americans United, the ACLU, the Alliance Defense Fund, and several other advocacy groups, will try to build up their positions in the lower courts. No doubt several towns and cities who fall under the jurisdiction of the 4th Circuit Court of Appeals are currently talking with their lawyers over their prayer policies, and whether they need to include more Wiccans.

The 4th U.S. Circuit Court of Appeals today ruled 2-1 that the Forsyth County Board of Commissioners’ preference for Christian prayers violates the constitutional separation of church and state. […] The record in the case indicates that 26 of the 33 invocations given from May 29, 2007, until Dec. 15, 2008, contained at least one reference to Jesus, Jesus Christ, Christ, Savior or the Trinity. The appellate court majority said government favoritism in religion is wrong. “Faith is as deeply important as it is deeply personal,” wrote Judge J. Harvey Wilkinson, “and the government should not appear to suggest that some faiths have it wrong and others got it right.”

If this ruling should withstand a Supreme Court challenge, it could change the tactics of groups like the Alliance Defense Fund, a main proponent of the inclusive sectarian model. They know that these sorts of policies favor the religious majority, typically Christianity, and that religious minorities will be drowned out in a sea of invocations to Jesus. A point brought up in the 4th Circuit’s ruling.

…the Board clarified that the prayers were “not intended, and shall not be implemented or construed in any way, to affiliate the Board with, nor express the Board’s preference for, any faith or religious denomination.” Instead, the stated goal of the policy was to “acknowledge and express the Board’s respect for the diversity of religious denominations and faiths represented and practiced among the citizens of Forsyth County.” Despite that language, the prayers repeatedly continued to reference specific tenets of Christianity. These were not isolated occurrences: between May 29, 2007 and December 15, 2008, almost four-fifths of the prayers referred to “Jesus,” “Jesus Christ,” “Christ,” or “Savior.”

What’s the problem with this? It creates a environment of intimidation and unspoken preference for one religious point of view in a place that is supposed to serve and be open to all citizens regardless of their religious preferences.

On Joyner and Blackmon’s account, the overall atmosphere made them feel distinctly unwelcome and “coerced by [their] government into endorsing a Christian prayer.” Blackmon claimed that she felt compelled to stand and bow her head because of the Chair’s instruction to stand and because of the audience’s response. Joyner offered a similar account, believing that if she had failed to comply, it would have “negatively prejudice[d] consideration of [her] intended petition as a citizen appearing for public comment.” Both characterized the prayer as sectarian, with Blackmon referring to it as including a “one-minute sermon.”

This puts into doubt the legal fig-leaf of Lancaster, California’s token inclusion of non-Christians. While the court ruled that the prayer policy of the Forsyth County Board of Commissioners is not necessarily unconstitutional, the overwhelmingly Christian nature of the sectarian prayers helped “create an environment in which the government prefers — or appears to prefer — particular sects or creeds at the expense of others.” If your prayer policy is open, but 4/5’s of your prayers are to Jesus, then you’re creating an atmosphere of preference that (perhaps inadvertently) endorses one type of religiosity over another.

On Thursday, U.S. District Court Judge Charles Siragusa ruled in favor of the town and dismissed the suit. “The Town did not begin having prayer at meetings in order to proselytize or advance any one, or to disparage any other, faith or belief,’” Siragusa wrote. “…The Town’s prayer policy, to the extent that one exists, is to invite clergy from all denominations within the Town, without any guidance or restriction on the content of prayers. The Town will also permit anyone who volunteers to give an invocation, including atheists and members of non-Judeo-Christian religions such as Wicca, and has never denied a request by anyone to deliver a prayer.” The town has invited clergy to the meetings by using a list of churches included in a local newspaper and by accepting requests from anyone else who was interested. There are few houses of worship in Greece that are not Christian.

“In just a few seconds’ time during the April Town Board meeting, Jennifer Zarpentine made Greece history. Zarpentine, a Wiccan, delivered the first-ever pagan prayer to open a meeting of the Greece Town Board. Her hands raised to the sky, she called upon Greek deities Athena and Apollo to ‘help the board make the right informed decisions for the benefit and greater good of the community.’ A small cadre of her friends and coven members in the audience chimed in ‘so mote it be.’”

“America’s founders opened public meetings with prayer. Public officials today should be able to do the same,” said ADF Senior Legal Counsel Joel Oster. “Opening public meetings with prayer has always been lawful in America, and the court here affirmed that it still is today.” “As the court itself concluded, invocation policies like the Town of Greece’s are constitutional,” Oster explained. “In fact, the court specifically pointed out that government attempts to mandate watered-down prayers that don’t mention a specific deity, as demanded by Americans United, would violate the First Amendment by placing government in control of the content of prayer. An organization with ‘separation of church and state’ in its name should not advocate for a violation of the Establishment Clause.”

An AU spokesperson said they were“obviously disappointed” by the ruling, but there has been no official statement, nor word on if they plan to appeal the ruling. You can download a PDF of the decision and order, here. The question now is if this twist in the battles over sectarian prayer at government meetings will stand up to legal scrutiny, or if it will be overturned on appeal. In other cases, mere randomness hasn’t been enough, so will towns being served cease-and-desist letters go the extra step of inviting a Pagan to the proceedings? It will also be interesting to see how diverse Greece stays once the legal dust has settled. Will Jennifer Zarpentine be invited back to invoke Apollo and Athena on a semi-regular basis? What do you think? Are sectarian prayers OK if they are suitable diverse?

“[Greece deputy town supervisor Jeff] McCann said the town has long used a list of worship services published in a local newspaper to extend invitations to local clergy for the meetings. The list offers little diversity, he said, and the town has had difficulty locating people from nontraditional faiths who may not have a physical church building they attend. “Now that the issue has gotten some publicity, we’ve had people call up and say they have an interest in delivering a prayer,” he said, adding that nonclergy, the nonreligious and anyone else who wishes to speak the pre-meeting prayer is welcome. “If a private person wants to come and say a prayer, they can come and do it.” Indeed, he said, next month’s Wiccan prayer was initiated by local resident Jennifer Zarpentine, who called town offices to ask whether she would be welcome at a meeting.”

“In just a few seconds’ time during the April Town Board meeting, Jennifer Zarpentine made Greece history. Zarpentine, a Wiccan, delivered the first-ever pagan prayer to open a meeting of the Greece Town Board. Her hands raised to the sky, she called upon Greek deities Athena and Apollo to ‘help the board make the right informed decisions for the benefit and greater good of the community.’ A small cadre of her friends and coven members in the audience chimed in ’so mote it be … Zarpentine said she was pleased by the opportunity to pray at the meeting. ‘I thought the invocation went well,’ she said. ‘The board was respectful;, they all bowed their heads.’ As far as the lawsuit goes, Zarpentine said the town isn’t being discriminatory. ‘They are including everybody,’ she said. ‘They asked me.’”

“In the hour-long hearing, Richard R. Katskee, assistant legal director for Americans United, argued that the plaintiff is concerned not with prayer before the meetings but with sectarian prayers that have dominated the practice since Auberger started it in 1999. According to court papers, of 104 prayers from 1999 through 2007, none were non-Christian. Since the lawsuit was filed, the majority of the prayers have been Christian, with one being delivered by a Wiccan priestess and two others by non-clergy. Katskee stressed that the plaintiff is not against Christian prayer, but that the prayers have been aimed at one sect … Joel Oster, a senior litigation counsel for Colorado-based Alliance Defense Fund that is representing Greece, said that it is not right to ask the town to police the clergy. “It is not the town’s place to tell the clergy what to say,” Oster said. “It would cause a nightmare for the town.” Auberger has said that the town’s practice is to have an open invitation to any Greece resident to contact the town about giving the prayer.”

So now we’ll find out if a legal fig-leaf in the form of a single sectarian Wiccan prayer (amidst a hundred Christian prayers to Jesus) can aid this New York town and their socially conservative legal team overcome the AU and some pretty strong legal precedents in their favor. Will Greece’s “include a Wiccan” gambit work? Or will they be forced to switch to non-sectarian prayers? In about six weeks we get to find out.

Should religious institutions be allowed to endorse political candidates? Since 1954 it has been illegal for non-profits, including all religious bodies, to formally endorse (or oppose) a political candidate. This ban was introduced by Lyndon Johnson in an attempt to stem the tide of McCarthyism, which had found fertile ground in a variety of right-wing non-profit organizations. Since then, a variety of religious bodies have complained bitterly about their lack of freedom, and the Alliance Defense Fund is planning to do something about it.

“Declaring that clergy have a constitutional right to endorse political candidates from their pulpits, the socially conservative Alliance Defense Fund is recruiting several dozen pastors to do just that on Sept. 28, in defiance of Internal Revenue Service rules.”

However, the ADF’s mission might get derailed before it ever begins. A coalition of Christian and Jewish clergy, along with three former IRS officials, wants the IRS to determine if the ADF itself is violating the law.

“…the group also wants the IRS to determine whether the nonprofit ADF is risking its own tax-exempt status by organizing an “inappropriate, unethical and illegal” series of political endorsements. “As religious leaders, we have grave concerns about the ethical implications of soliciting and organizing churches to violate core principles of our society,” the clergy wrote…”

Somehow I don’t think this will dissuade the ADF, or the participating churches, from going forward. So we may soon see the beginning of an epic legal battle over whether a church or non-profit can engage directly in partisan politics*. If the ADF were to be ultimately successful, we would see a drastically changed political landscape. You thought religious pandering and the influence of evangelical leaders were bad this election cycle? Wait till politicians strive to get the endorsements of whole churches or denominations. It certainly won’t do any favors to religious minorities, and we may soon see the re-emergence of the fanatical (and tax-deductible) blacklisting organizations that Lyndon Johnson once sought to disempower.

“The South Carolina General Assembly unanimously passed a bill Wednesday that provides guidelines to public bodies within the state regarding their right to open a meeting with prayer. The bill, which adopts a version of the Alliance Defense Fund’s model invocation policy, now awaits a signature from Gov. Mark Sanford to become law. Sanford has already indicated his intention to sign it.”

“If there is one state that can ill afford an ineffective chapter of the American Civil Liberties Union it arguably is South Carolina … in recent years [the SC ACLU chapter] been hampered by ideological squabbling among its board members, staff leadership turnover, lackluster membership and fundraising numbers and a virtually nonexistent media presence. Aware of the problems for some time, the national ACLU board has decided to step in and try to right the ship.”

At stake are the religious freedoms of religious minorities in South Carolina, and ultimately, all over this country. Those who live in smaller towns, rural areas, and states unfriendly to the sort of diversity we represent. The ones who aren’t lucky enough to live in the Bay Area, Salem, or Paganistan. A small prayer to Jesus may not seem like a big deal, until your realize that without the promise of a secular government, our rights to an equal place at the table are jeopardized, and we are ultimately afforded second-class status due to our non-Christian allegiance. Which is why Hindu, Buddhist, and Native American groups have lined up in the past to support Pagans fighting against “Judeo-Christian” sectarian prayer.

“As adherents of non-Judeo-Christian religions, Hindu Americans, Buddhist Americans, and Native Americans have a direct interest in this [Cynthia Simpson’s] case. They, like all Americans, are guaranteed religious freedom by the religion clauses of the First Amendment. The ability of these minority religious groups to take part equally in American civic life, a fundamental freedom protected by the religion clauses, is threatened by the Fourth Circuit’s holding that the Establishment Clause does not prohibit governments from excluding non-Judeo-Christian clergy from eligibility to offer legislative invocations.”

If you were ever looking for proof that the small legal battles Pagans get involved in matter, or that issues over sectarian prayer are important, look no further than South Carolina, and the small town of Great Falls. Where a single Pagan stood up and fought for a local legislative body that worked for all its citizens, not just the Christian ones.

“It becomes clear from reading the bill that its authors are trying to navigate the legal waters created by two cases involving Wiccans and public prayers: Darla Wynne (a resident of South Carolina who won her case against Great Falls) and Cynthia Simpson (a Virginia resident who ultimately lost hers). In other words, they are trying to bring back prayers to Jesus at government meetings without the lawsuits … if this bill becomes law, the Darla Wynnes of this world can’t sue the local city council for exclusively praying to Jesus without bringing litigation against the entire state. Its clear that the authors are hoping that their emphasis on context will win over content (ie Jesus), and in turn create a legal fog of what can or can’t be allowed.”

“The South Carolina Senate has approved a bill that would allow prayers before public meetings. In 2001, a Wiccan priestess sued the town of Great Falls, claiming it violated the separation between church and state when “Jesus Christ” was used in prayer. The town lost the lawsuit. This legislation says public bodies can adopt policies to let members take turns giving an invocation, elect a chaplain, or create a pool of speakers from faith groups to offer the prayer. The bill also calls for the state attorney general to defend public bodies if they face constitutional challenges. The public prayer bill now heads to the House.”

“It intentionally gives no direction on whether a prayer can mention a deity, instead suggesting boards seek local legal advice on that. “I think this might actually add to the constitutional confusion,” said professor Josie Brown of the University of South Carolina Law School.”

In short, South Carolina is trying to undo Darla Wynne’s victory, reinstate Christian prayer through a legal fog, and make it extremely difficult for litigation to be brought against a local legislative body (since any such case would instantly be taken up by the state). This is all part of a larger plan instituted by Christian conservative groups to chip away at the legal victories won by religious minorities and secular groups in the last thirty years.